Criminal law and procedure - Obtaining property with intent to defraud by deceit or fraudulent means - Whether the mind of the manager of the mortgage lending division of trustee company stood as that of the company

Evidence - Character evidence - Evidence not relating to reputation of accused - Trial Judge declining to direct jury with respect to relevance of good character as affecting the credibility of the accused

Evidence - Failure of prosecution to call a witness - Whether trial Judge erred in not directing the jury that they could infer that the witness would not have assisted the case for the prosecution

Evidence - Burden of proof - Whether trial Judge's direction implied some onus of proof placed upon the accused

Evidence - Whether accomplice warning required - Not put to witnesses that they might be accomplices - No basis shown for witnesses having any knowledge of an intention on part of the accused to defraud company by deceit or fraudulent means - No requirement that trial Judge should give corroboration warning

Criminal law and procedure - Sentencing - Obtaining money with intent to defraud by deceit or fraudulent means - Stealing - Six offences - Estate agent - Breach of trust - Offending spread over a period of two years and three months - Effective sentence of 9 years' imprisonment with eligibility for parole not set aside as excessive

Legislation:

Nil

Result:

Appeal against convictions dismissed
Leave to appeal against sentences allowed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant/Applicant : Mr I L K Marshall
Respondent: Mr I S Jones

Solicitors:

Appellant/Applicant : E M Stanley & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Attwood v The Queen (1960) 102 CLR 353
Davies v Director of Public Prosecution [1954] AC 378
Melbourne v The Queen (1999) 198 CLR 1
Meridian Global Funds Management Asia Pty Ltd v Securities Commission [1995] 2 AC 500
R v Apostilides (1984) 154 CLR 563
R v Barrick (1985) 81 Cr App Rep 78
R v Bellis [1966] 1 WLR 234
R v Birch (1993) 69 A Crim R 181
R v Carreras (1992) 60 A Crim R 402
R v Evans [1964] VR 717
R v Farquhar, unreported; CCA SCt of NSW; 29 May 1985
R v Garner, unreported; CCA SCt of NSW; 25 August 1983
R v Johnson & Edwards (No 2) [1982] Qd R 555 at 560
R v Laverty [1970] 3 All ER 432
R v Lawson [1960] VR 37
R v Lucas [1973] VR 693
R v Moon [1969] 1 WLR 1705
R v Murphy (1985) 63…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan v The Queen

Details

AGLC: Chan v The Queen [2002] WASCA 50
Case: [2002] WASCA 50
Decision Date: 14 MARCH 2002

CaseChat Overview and Summary

The appellant, Chan, was convicted of six counts of obtaining property by deception and one count of stealing. The appeal against conviction and sentence was heard by the High Court of Australia. The primary dispute was over the admissibility of certain evidence, the trial judge's direction to the jury, and the severity of the sentence. The High Court considered whether the trial judge erred in various respects, including in declining to direct the jury on the relevance of the appellant's good character, in not directing the jury to infer that the prosecution's failure to call a particular witness suggested that the witness would not have assisted the prosecution, and in not giving an accomplice warning to the witnesses.

The court examined whether the trial judge's directions implied that some onus of proof was placed on the accused. It was also necessary to determine if the trial judge should have given a corroboration warning. The court concluded that the trial judge did not err in declining to direct the jury on the relevance of the appellant's good character or in not directing that the prosecution's failure to call a witness suggested that the witness would not have assisted the prosecution. It was also determined that there was no requirement for an accomplice warning because there was no basis shown for the witnesses having any knowledge of an intention on the part of the appellant to defraud the company by deceit or fraudulent means.

The High Court found that the trial judge's direction did not imply some onus of proof was placed on the accused. The appeal against conviction was dismissed, and the sentence was upheld. The court found that the sentence of nine years' imprisonment with eligibility for parole after six years and three months was not excessive, given the nature and circumstances of the offending, which involved a breach of trust and spanned over two years and three months. The court's decision emphasised the importance of the trial judge's directions and the absence of error in this case.

Orders